The Texas Property Code Section 5.021, also referred to as the Statute of Conveyances, requires that “a conveyance of an estate of inheritance, a freehold, or an estate for more than one year, in land and tenements, must be in writing and must be subscribed and delivered by the conveyor or by the conveyor’s agent authorized in writing.”
For purposes of this article, Section 5.021 requires that a conveyance of real property must be in writing and must be signed and delivered by the seller. The instrument conveying the real property must contain the essential characteristics of a deed. As an instrument conveying an interest in real property, deeds are subject to the Statute of Frauds. A more thorough explanation of the Statute of Frauds can be found here.
For a deed to be a legally effective conveyance one must (1) be able to ascertain the grantor (seller) and grantee (buyer), (2) there must be language showing the grantor’s intention to convey title to the real property to the grantee (also referred to as “delivery”), (3) the real property must be sufficiently described, and (4) the deed must be signed and acknowledged by the grantor. See Green v. Canon, 33 S.W.3d 855, 858.
The first requirement is straightforward in that the parties must be named in the deed.
It most situations it is easy to determine the grantors intent, although it is important to note that language included in an instrument that contemplates future action can invalidate a conveyance.
Case law has established that delivery encompasses two elements: (1) the grantor must place the deed within the control of the grantee (2) with the intention that the deed become operative as a conveyance. See Hernandez v. Hernandez, 547 S.W.3d 898, 901. Ultimately the questions as to delivery is determined by the intent of the grantor, by looking at the facts and circumstances preceding, during, and following the execution of the deed.
The third requirement is the most troublesome. A conveyance of property that fails to describe a definite tract of land is void. The description does not have to list the metes and bounds description of the property, but it must provide the means by which the land being conveyed may be identified with reasonable certainty. The legal description must furnish enough information to locate the general area such as identifying it by tract survey and county but should contain information regarding the size, shape, and boundaries. See AIC Mgmt. v. Crews, 246 S.W.3d 640, 645.
TYPES OF DEEDS
Generally, there are three types of deeds in common use in Texas – a general warranty deed, a special warranty deed, and a deed without warranty. Admittedly there are other deeds in use, but discussion on those is reserved for future articles. It is important to note that the title of the deed is not the determinate factor in evaluating the warranties conveyed by the grantor – the language provided in the document prevails.
General Warranty Deed
The general warranty deed is the type most often used in Texas residential property sales. The obligation under a general warranty deed applies to any failure or defect in the grantee’s title, whatever the source. Meaning that a grantor is liable for a defect that occurred even before the grantor purchased the property.
A typical general warranty clause reads:
Grantor binds Grantor and Grantor's heirs and successors to warrant and forever defend all and singular the Property to Grantee and Grantee's heirs, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty.
Special Warranty Deed
The special warranty deed is the used predominately in Texas commercial property sales. Unlike the general warranty deed, under a special warranty deed, the grantor warrants the title only against those claiming “by, through or under the grantor.” Meaning that the grantor is liable only for those losses or injuries arising in the grantor’s title during the grantor’s term of ownership of the property.
A typical special warranty clause reads:
Grantor binds Grantor and Grantor's heirs and successors to warrant and forever defend all and singular the Property to Grantee and Grantee's heirs, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof when the claim is by, through, or under Grantor but not otherwise, except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty.
Deed Without Warranty
A deed without warranty simply conveys the property without any warranties whatsoever. Despite the lack of any warranties, the deed without warranty conveys the grantor’s interest in the property described to the grantee. This should be used in place of a quit claim deed as quit claim deeds are fundamentally flawed in the State of Texas.
A typical conveyance clause in a deed without warranty reads:
Grantor, for the Consideration and subject to the Reservations from Conveyance and the Exceptions to Conveyance, grants, sells, and conveys to Grantee the Property, together with all and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to Grantee and Grantee's heirs, successors, and assigns forever, without express or implied warranty. All warranties that might arise by common law as well as the warranties in section 5.023 of the Texas Property Code (or its successor) are excluded.
The preceding is intended as a general overview of Deeds in Texas and is by no means comprehensive. It is important to note that the terms of the transaction and status of the parties can oftentimes determine the type of deed and the need additional provisions or disclaimers to be included within the deed. The attorneys at Byers & Taylor, PLLC have the expertise to ensure that your deed is prepared properly and promptly.